Transcript:

This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

CAVANAUGH: Our top story on Midday Edition, when a U.S. Border Patrol agent asks you a question, are you required to answer? The issue of whether citizens are required to answer questions at border checkpoints is being challenged in a being challenged in a series of confrontations on YouTube.

DAVIES: When a driver approaches a Border Patrol checkpoint, the drill is to pull off the highway, wait in line, and then a Border Patrol agent will ask you:

BORDER PATROL AGENT: Are you a U.S. citizen?

DAVIES: If you answer yes, you'll be back on the road in most instances. What happens if you refuse to answer? That's what some people are doing, and they've videotaped themselves doing so. It's become a YouTube sensation:

BORDER PATROL AGENT: Are you a U.S. citizen?

BRESSI: That's my business.

DAVIES: One video has over 400,000 views since it was posted just over a month ago. The montage shot by the drivers all the show them refusing to answer the Border Patrol's favorite question.

BORDER PATROL AGENT: I'm just asking you for the purposes of immigration. I need to ask you of what country you're a citizen?

BRESSI: Am I being detained?

BORDER PATROL AGENT: What country?

BRESSI: Am I free to go? Are you refusing to allow me to go on my way?

DAVIES: And things get confrontational.

BORDER PATROL AGENT: We can stay all day here playing your little game.

BRESSI: Is really is a smack across the face. Any liberty-loving American.

DAVIES: Terry Bressi lives in Arizona and has videotaped about 250 checkpoint experiences where he has refused to answer Border Patrol questions and posted some on YouTube. He says the video camera is his equalizer.

BRESSI: My purpose in having the cameras on hand and running while I'm going through a checkpoint is not so that I can have some cool video to make for YouTube. It's to protect myself legally.

DAVIES: He claims without the videotape, the Border Patrol agents would be free to invent probable cause and detain him simply because they don't like his attitude. A lawyer for the ACLU (Adriana Pinon) says the YouTube videos show what happens when people exercise one of their fundamental rights.

PINON: One always has the right to remain silent In the videos, you do see people asserting that right, and an individual has a constitutional right to remain silent even at a checkpoint.

DAVIES: The Border Patrol would not comment on tape for the story but said most Americans cooperate at the checkpoints and there's no indication that there's a growing number of people refusing to answer their questions. The real issue here is a dispute over whether or not these checkpoints violate the U.S. constitution. The Border Patrol says the checkpoints do not.

PINON: The Courts have decided that because it's such a brief intrusion on a person's liberty that it is constitutional.

DAVIES: But the blogger is that claiming they're unconstitutional because the Supreme Court ruled they should be used only for immigration purposes. He claims the question are you an American citizen is actually a ruse used by the Border Patrol to get drivers to stop, be scanned, tracked, recorded, and sniffed by drug dogs, which he says are all violations of the constitution.

BRESSI: It's not border security. It's internal security.

DAVIES: And constitution or not, after each of the videotaped confrontations, the Border Patrol does allow the drivers who refuse to cooperate to just drive on out.

BRESSI: I should have the freedom to travel as I'm an American here. See you later.

DAVIES: David Martin Davies reporting.

(End of Recording)

CAVANAUGH: And David Martin Davies, news director for Texas public radio joins me now. Welcome to the show.

DAVIES: Hi, Maureen. Thanks for having me.

CAVANAUGH: And David Loy, legal director of the ACLU of San Diego and imperial counties. Welcome to you.

LOY: Thank you, Maureen.

CAVANAUGH: Now, Dave, we are talking about internal border checkpoint, right? Not points of entry.

DAVIES: Right. These are internal, they go up to 100 miles from the actual border itself.

CAVANAUGH: Right. We have about six of them in Southern California. Are there many any Texas and Arizona as well?

DAVIES: Oh, certainly. Sure. There's a major one on I-35 just north of Loredo, which is massive. It's like driving into almost like a shopping mall, it's so big.

CAVANAUGH: With hundreds of thousands of views that you told us, it must have hit a cord with people. Why do you think that is?

DAVIES: Well, I think the Border Patrol checkpoints, if you live in the southwest, you're familiar with them. And this is a direction point where people encounter the federal government and them questioning you, and it's quite an experience. And if you've never been through Tit's hard to relate to. It's kind of like the TSA, but just to drive down the road. So they're questioning you and sometimes people are wondering what is this all about?

CAVANAUGH: The person featured in your report, Terry Bressi does he have a political agenda in all this? I notice he's been championed by some right wing Tea Party type activists.

DAVIES: Well, it's hard to define that. Who doesn't have a political agenda? We all want something. I don't know if that would disqualify him in any way. He wants freedom. He's a liberty-lovin' American.

CAVANAUGH: Right. Not disqualifying him, but it does put his focus on whether or not he has to declare his citizenship in a new right.

DAVIES: He is a person who doesn't like to be questioned when he's driving freely in the United States.

CAVANAUGH: David Loy, do we have a constitutional right to refuse to answer simple questions at these roads checkpoints?

LOY: Yes, absolutely. The Constitution guarantees all persons the right to remain silent, the right to refuse to answer questions. Border Patrol can ask all they want but I and you and everyone else are perfectly free to refuse to answer. All Americans of the left or the right have a fundamental interest in protecting their civil liberties under the constitution. I agree, it doesn't really matter what his personal politics are, he is standing up for fundamental constitutional rights, and I applaud him for that.

CAVANAUGH: Can you make a distinction here between your right not to answer the question of customs and Border Patrol officers at the roads checkpoints and your rights as a DUI checkpoint where officers are checking sobriety?

LOY: The two types of checkpoints, which ACLU thinks ought to be unconstitutional, whatever the U.S. Supreme Court has said, we disagree with the holdings. But given that the Supreme Court has allowed these kinds of checkpoints to proceed, at both checkpoints both types, individuals still retain a fundamental right not to answer questions. And therefore the law enforcement agents operating the checkpoints must either, A, let the driver go after a few minutes, or B, if they want to continue to detain the driver, they must have either reasonable suspicion or probable cause that that driver committed a crime or is in the country unlawfully, in the case of an immigration checkpoint. But that reasonable suspicion or probable cause cannot be based on a person's refusal to answer questions.

CAVANAUGH: Okay. Now, the reason I brought up the DUI checkpoints is I know that we talked to the ACLU in the past about the constitutionality of checking for citizenship status at a DUI checkpoint, as has happened occasionally in Escondido. And can you remind us where that particular issue stands?

LOY: Local law enforcement in our view has no business getting into immigration enforcement. If the Supreme Court has said they're allowed to conduct a DUI checkpoint, so be it. But local law enforcement needs to stay in the business of enforcing local laws. They should not be in the business of getting into questions of federal immigration law enforcement. That creates distrust in the local community and ultimately jeopardizes public safety by making local residents afraid to cooperate with local law enforcement on local issues.

CAVANAUGH: What is it, if anything, that we do have to disclose when questioned by a Border Patrol agent or law enforcement officer?

LOY: Well, in the context of a checkpoint?

CAVANAUGH: Yes.

LOY: Virtually nothing. There are other situations where if I am validly stopped for a traffic violation, then I must produce my driver's license. Or identify myself. If there is an otherwise legitimate basis for the stop, that is, there is probable cause to believe I've committed a crime or a traffic violation, then the Supreme Court has said citizens and persons can be required to identify themselves.

DAVIES: And may I add to that?

CAVANAUGH: Yes, Dave.

DAVIES: Even though you may not very any question, you can just stand there and refuse, you're still giving up information whether you know it or not. They're running your plates, they're scanning your vehicle, they're sniffing your vehicle, they're recording everything about you that's happening, and that's going into some sort of database. So you're still giving up information even if you don't speak a word.

CAVANAUGH: I'm wondering, you said, David Loy, a while ago that just simply not answering in and of itself cannot be used as probable cause to therefore take you into custody or to ask you more questions. But isn't there a real gray area here? Hasn't that actually been used before by law enforcement to pursue other kinds of a search, as Dave just mentioned, about a person's vehicle or their very presence in a certain area?

LOY: Well, that's a couple of different questions wrapped into one. Let me see if I can break it down. As I understand, the law is crystal clear that the refusal to answer questions, the assertion of the right to remain silent cannot be used as grounds to detain or arrest.

CAVANAUGH: Can you simply not answer? Or do you have to say I'm asserting my right to remain silent?

LOY: Either one. You simply or explicitly say I'm invoking my right to remain silent, or simply sit there and remain silent. Of course law enforcement can gather information that is exposed to public view, be it my license plate, the color of my car, the color of my hair, what have you. That is not testimonial. That is simply a fact that they're entitled to observe. And that does have -- that information when aggravated and maintained in databases can create problems. And that's another problem we have about the sort of mostasticizing of law enforcement checkpoints across the southern border. It has become a checkpoint society, and we have fundamental problems with that, even if it's allowed by the Supreme Court. There are significant liberty and privacy problems with transforming the southern border into a checkpoint society. And the gentleman who makes the videos and was interviewed makes a very valid point. These checkpoints have exceeded their original purpose as contemplated by the Supreme Court. In a case called Martinez in 1976, the Supreme Court upheld the right of Border Patrol to conduct these interior checkpoints. As I said, we disagree strongly with that decision. I would love nothing better than to see it overruled as a matter of 4th amendment law. But that decision by its own terms was limited to the idea of immigration enforcement. The Supreme Court has said in other cases, which we agree with, that the government has absolutely no right to conduct checkpoints for general criminal law enforcement. The only context the Court has approved checkpoints are traffic safety and immigration. The Court has said checkpoints cannot be for the primary purpose of generic criminal law enforcement. We're getting awfully close to that line here. These Border Patrol checkpoints are routinely used not for immigration law enforcement but for criminal enforcement.

CAVANAUGH: You did mention the Border Patrol response in your report, Dave. But did they address specifically any of the issues raised by these people who are challenging the Border Patrol agents' right to ask them questions and get answers?

DAVIES: Well, they said that they are looking for probable cause before they send people onto secondary inspection. And they look at -- and that's pretty vague in general. Do you think a drug dog could hit upon anything that would raise a suspicion of an agent?

CAVANAUGH: Now, you just gave an impassioned response about these roads checkpoints, David Lloyd. But I'm wondering aside from the constitutionality of the issue, if you had a client who was not involved in some sort of organized effort to expose this and post it on YouTube, would you recommend to your client not to cooperate with Border Patrol questions?

LOY: I think individuals have to make a personal decision about their comfort level with invoking their rights. Law enforcement officers typically don't like it when people invoke their legal rights to refuse to consent to search, to refuse to answer questions, to refuse to cooperate generally when they're not obligated to do so. And so it takes a person of a certain fortitude and strength of character to withstand the efforts of law enforcement to persuade them to answer questions when they don't have to.

CAVANAUGH: I always advise everyone, use your rights or lose them. If you ignore your constitutional rights, they will go away. So I applaud anyone who stands up for their constitutional rights.

I want to let everyone know that we did invite members of the U.S. Border Patrol here in San Diego to join us for this discussion. But they could declined, actually, to be part of this discussion.